If conservatives really want an originalist on some of the most consequential issues of our time, it is important to ask nominees to the court questions about the role of the courts in constitutional interpretation compared to other branches of the government. If we could sit down for an hour hour of time with any high court nominee, here are the 15 questions and issues we would discuss....
1. Does the Supreme Court create “settled law?” Is it the final arbiter? ...
2. Does the concept of stare decisis violate the judicial oath of office? Do you support the prevailing doctrine of treating erroneous landmark decisions as settled law when they manifestly violate the Constitution or its amendments as originally adopted?...
3. Does Congress have full power over the jurisdiction of lower courts and the appellate jurisdiction of the Supreme Court?
Until recently, it was considered settled law that Congress, pursuant to Art. III Sec. 2, has full authority over the subject-matter jurisdiction of the lower courts and plenary power over the appellate jurisdiction of the Supreme Court. Do you believe there are any limitations on that power? Would you respect any limitations Congress places on the jurisdiction of the federal judiciary and be willing to overturn any lower court that violates Congress’ power?...
4. Is the Supremacy Clause binding states to the supreme law of the land referring to the Constitution as it was originally adopted or to Supreme Court decisions?...
5. Do you feel it is an obligation of the Supreme Court to grant certiorari or a stay for appellants when a lower court decision or injunction is built upon a prima facie “living and breathing Constitution” doctrine?...
Immigration
7. Do you believe there are any exceptions to the plenary power doctrine?
Since our founding until the modern era, the courts have upheld the plenary power doctrine that Congress — acting on behalf of the citizenry and national sovereignty — has the power to exclude or deport any foreign national or groups of immigrants for any reason. The courts, in what has been considered one of the most settled areas of law, declared that there is no affirmative right to judicial review to keep a foreign national in the country against the national will. Further, they have ruled that the process established by Congress through statute to deport an alien is due process. In recent years, however, the modern legal profession has chipped away at national sovereignty....
8. Do you believe Plyler v. Doe, which forced states to provide education benefits to illegal aliens, was erroneously decided?
Do you agree with Scalia’s dissent in Arizona v. United States (2012) that states have full power to echo, complement, and even expand upon federal restrictions against illegal aliens so long as such action is not explicitly prohibited by Congress? Do you agree with Scalia’s assertion that “the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it”?
9. Do you agree with the modern legal theory that illegals have rights to citizenship for their children and other sundry rights to remain in the country?
Do you agree with contemporary activist legal theory that the Fourteenth Amendment requires Congress to count illegal aliens in the Census?
How should the Citizenship Clause of the Fourteenth Amendment be understood? Does it extend an automatic and unqualified birthright citizenship to those who come here or remain here against the national will, even though settled case law considers illegal aliens to be standing outside our border?[1]
Does the government have the right to detain illegals or criminal aliens with the full intent to deport them when their home countries aren’t cooperating? Do you believe Zadvydas was wrongly decided?
Given that sanctuary cities, unlike states like Arizona that complement federal law, defy an enumerated power of Congress, does Congress have the authority to cut off funding to those cities?
Fourteenth Amendment
10. What does the Fourteenth Amendment really do?
The
Fourteenth Amendment was originally written with the intent of undoing the legal atrocities of chattel slavery and restoring inalienable rights to free slaves. Since then, its provisions have been used as a blanket justification to codify a never-ending list of privileges into the body of constitutional case law. This modern understanding of the amendment has not only been used to create “rights” to abortion and same-sex marriage, but has also been used by leftist judges to manufacture “rights” to early voting, transgender bathrooms, and a host of other issues, as well as new rights for illegal aliens.
This has, in turn, created a legal regime in which the imaginary rights begin to devour the fundamental rights that are actually referenced in the Constitution. This has been the case for rights of conscience in the face of “rights” like abortion and same-sex marriage under the Obama administration.
Do you believe as the crafters of the Fourteenth Amendment did that the Equal Protection and Due Process clauses were “establishing no new right, declaring no new principle,” but rather to reiterate and “to protect and enforce those which belong to every citizen”?[2]
11. When Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972 prohibit discrimination based on sex, does that include what is now referred to as “gender identity” and “sexual orientation?” Or does it mean “sex” as was understood when the law was passed?...
13. What is your view of “substantive due process?”
Do you believe the 20th century invention whereby judges manufacture rights under the Fourteenth Amendment is “settled law?” ...
Voting rights and voter integrity
14. Who decides voting qualifications? Do states have final say over redistricting, or should the courts step in to act as final arbiters?
15. What rights do courts have to interfere in voter ID policies?
Another trend in the federal courts is to overturn state voter integrity laws and mandate the methods, times, and procedures of state and federal elections. Evidently, according to some lower courts, there is a constitutional right to 20 days for early voting, ballot harvesting, an unlimited number of polling places in urban areas, same-day registration, an option for straight-ticket voting, non-citizen voting, voting without photo ID, dead voters remaining on the voter rolls, and the ability of one political party to maximize its electoral advantage through black voters. Do you believe there is any basis for interventions from the federal courts absent a clear mandate from statute, given that states were supposed to control election law and all these cases can be heard in state court?...
Related
The Judicial Transformation of America - Two views on a timely, scathing critique of judicial tyranny, by Fred Elbel, The Social Contract, Summer, 2017:
... As Benjamin Franklin left the Constitutional Convention, he was reportedly asked, “Well doctor, what have we got, a republic or a monarchy?” He famously replied, “A republic, if you can keep it.”
A core principle of a republican form of government is that political and societal questions must be addressed by the political branches of government, which are directly accountable to the people.
Today we are confronted with stolen sovereignty, thanks to dogmatic judicial activism. We are quickly moving toward irremediable, non-representational despotism. We are being ruled, not governed, by an activist judiciary. As Horowitz so aptly asks:
"If judges serve life tenures, can decide political issues, and are inoculated from congressional checks on their authority, then what was the purpose of the revolution?"
